More and more people are having children together without being married to one another. In situations where children are conceived and the parents are unmarried, the type of family law matter that results is known as Paternity, or Parentage. It is in this action that the rights and obligations of both parents is formally established when the relationship, if there ever was one, comes to an end. This action can be started by a Mother or a Father seeking to establish child support and time sharing schedule. Mothers can file even before a baby is born. Fathers can only file after the baby is born. DNA testing may be required if the paternity is disputed by either party.
Fathers have a duty to support a child even before it is born, and may be held responsible for a share of the prenatal medical costs. Whether or not a Father signs the birth certificate, he immediately has the obligation of child support upon the birth of the child. If the Mother and Father are living together for a period of time, the Father is presumed to have been supporting the child while they all lived together. But if the parties have separated, the Mother is entitled to up to two years’ past child support dating back to the separation.
Mothers are the natural legal guardians of any child born outside of marriage. Therefore, until a Father has established his paternity with a Judgement issued by a Court, he has no rights of custody to his child. The Mother is endowed with all of the rights from birth, and she can go anywhere in the world she wants until an action for Paternity has commenced. Unwed Fathers would be wise to file to establish their paternity and legal rights as soon as possible after the child is born. If you believe that you may be a father to someone’s unborn child, and you want to protect your future rights as a father, you must register with the Putative Father Registry.
Signing the child’s birth certificate creates a rebuttable presumption that the man who signed the birth certificate is the father of the child. However, once again, merely signing the birth certificate does not give the father any rights until he has obtained a Final Judgement of Paternity.
If you believe you are the father of a child whose mother is married to someone else, the situation becomes extremely complicated. A woman’s husband (or wife) is legally presumed to be the Father (or second parent) of any child born during the marriage. As of January 2018, if a woman is married and no petition for divorce has been filed, and they are not living so separate and apart that her husband has no physical access to her, and the Mother has not allowed the biological father to establish a relationship with the child, then the biological father cannot establish his parental rights, and displace the Mother’s husband as the legal father. This can result in a biological father having no parental rights of any kind to his own child. Only the Husband can disestablish his paternity. Some husbands, of course, are only too happy to terminate any parental obligation to a child that is not his. A woman who has cheated on her husband and had a child by another man may well find that her husband is anxious to end the marriage and allow her to raise her child with the biological father.
However, right now there is draft legislation that may impact this scenario, and provide biological fathers with greater ability to establish their rights alongside the husband. Stay tuned for updates. If the law changes, this section will certainly be updated with the latest information.
Paternity cases are very much like divorce cases, without the division of marital property and alimony. Alimony cannot be awarded if the parties were never married. Florida does not recognize “palimony” or common law marriage. But if unmarried partners own real estate together, or have jointly titled assets or debts, there may indeed be some assets to divide in addition to “you keep yours and I keep mine”.
